Alimony

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is based on the incomes of the parties but may also be affected by the distribution of other marital assets, if any. The length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. Parties to a private agreement may stipulate that alimony is non-modifiable in amount, duration, or both.

If a court is making a decision on an alimony award they must consider the factors listed in Section 3701 of the Domestic Relations statue. The factors to be considered by the court include: (1) The relative earnings and earning capacities of the parties; (2) The ages, and the physical, mental and emotional conditions of the parties; (3) The sources of income of both parties including but not limited to medical, retirement, insurance of other benefits; (4) The expectancies and inheritances of the parties; (5) The duration of the marriage; (6) The contribution by one party to the education, training or increased earning power of the other party; (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home; (8) The standard of living of the parties established during the marriage; (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) The relative assets and liabilities of the parties; (11) The property brought to the marriage by either party; (12) The contribution of a spouse as homemaker; (13) The relative needs of the parties; (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony. Adultery can serve as a bar to alimony.

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Steps for Custody Relocation

Section 5337 of the Domestic Relations statutes sets out the procedures and standards for relocation requests. All parties to a custody action are required to follow the procedures outlined in Section 5337 if they are moving to a distance which would make any existing custody arrangements difficult or impossible to follow. E.D. v. M.P., 2011 PA Super. 238, was one of the first cases to apply the new relocation law. In E.D. v. M.P., Mother appealed after the lower court granted Father’s relocation on the grounds that Father didn’t comply with the provisions of Sec. 5337.

The first error cited was Father’s filing of a petition and Mother’s filing of an answer. Under Sec. 5337 (c) regarding notice of relocation, the initial step procedurally is for the party requesting relocation to send notice to all other interested parties by certified mail, return receipt requested a certain number of days prior to the date set for relocation. Included with the notice should be a counter-affidavit that the opposing party can complete indicating whether or not they agree or disagree with the relocation and/or the modified schedule. If there is any opposition, a hearing will be needed. The counter-affidavit evidencing opposition should be filed with the court and served on the party requesting relocation in the same manner as received; by certified mail, return receipt requested. The next error relates to Sec. 5337 (g) which calls for a hearing to occur before relocation unless exigent circumstance exist. In E.D. v. M.P., the lower court granted Father’s request to relocate immediately without any finding or allegation of exigent circumstances.

Further, Sec. 5337(h) outlines ten (10) factors to be considered before a relocation is granted.

The party proposing relocation has the burden of establishing that the relocation will serve the best interests of the child. Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent it. The Superior Court agreed with Mother that the lower court failed to consider all the factors under Sec. 5337(h) in reaching its decision.

Ultimately, the case was remanded to the lower court for further proceedings applying the applicable laws. The decision indicates that the Superior Court will be diligent in scrutinizing decisions to determine if they have followed the provisions for all relocation matters.

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Presumption of Paternity

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child.

In K.E.M. v. P.C.S. 29 A.3d 843 (2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity and paternity by estoppel.

Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated.

The Supreme Court of Pennsylvania ultimately reversed the decision and remanded back to the lower court for further proceedings. Specifically, the Supreme Court held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. Accordingly, the court would need to be convinced that it was in the best interests of G.L.M. to continue to recognize Appellant’s husband, H.M.M., as the father. No such evidence was presented at the hearing. In summary, paternity by estoppel is still a viable principle in Pennsylvania, however, it must be supported by an analysis of what’s in the child’s best interests to succeed.

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Retake Maiden Name

A spouse can elect to retake his or her maiden name during a divorce. In Pennsylvania, pursuant to 54 P.S. § 504, “any person who is divorced from the bonds of matrimony may resume any prior surname used by him or her by filing a written notice to such effect in the office of the clerk of the court in which the decree of divorce was entered, showing the caption and docket number of the proceeding in divorce.” It is also possible to request to retake your maiden name while the divorce is still pending in Bucks County. There is a $9 filing fee payable to the court for the certified copies of the name change decree.

For New Jersey, you may also elect to retake your maiden name in the context of your divorce. Good practice is to include the request to retake your maiden name in the initial complaint. You can amend the complaint subsequently or even request the relief orally prior to your final divorce judgment. If you are looking to resume your maiden name after the divorce has been finalized, you must file a post-judgment motion with the court. There is a $50 filing fee. This process is still simpler than doing a civil name change.

Once you have the signed/certified Order granting the name change, you can take the Order to your local Social Security Office, Department of Motor Vehicles, banks, etc. to effectuate the actual change of name.

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Business Perks

It is not uncommon for self-employed parties or parties with ownership interests in a business to have some expenses paid for by the business. Examples may include paying their cell phone bill, car payments or repairs, travel expenses, entertainment costs, membership dues, etc. Many of these expenses can subsequently be deducted as legitimate business expenses in terms of preparing a business tax return however, they are treated differently in the context of family law. The issue of how personal perks are being paid often arises when trying to identify income available for child or spousal support. The value of some of these “business expenses” can be added back to a party’s income for purposes of a support calculation.

Business perks are also relevant in the context of a business valuation. An income based approach is most popular for small businesses. This method of valuation focuses on the cash flow of the business. The reasonable compensation of the party owner should be deducted from the cash flow of the business in doing a valuation however, the personal perks paid by the business on the owner’s behalf would need to be accounted for and subsequently, necessary adjustments would need to be made. Removing all expenses representing personal perks paid to the owner will increase the total income of the business and in turn, increase the value. If there is more than one owner a similar review of what business expenses are actually personal perks should be done for the other owners as well.

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Guardianship

Guardianship is an option for any individual who has trouble or is incapable of making their own decisions. A court may appoint a guardian and grant the guardian authority to make decisions on behalf of the individual who has been deemed incapacitated by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. A petition should be filed with the court to initiate a guardianship proceeding. Shortly after filing a petition you will be assigned a hearing date. The petitioning party has the burden of proof to demonstrate guardianship is absolutely necessary. This generally involves securing expert testimony from a treating physician regarding the extent of the incapacity and necessity for a guardian.

Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as other family members. The court’s decision will address the nature and duration of any guardianship to be instituted. For example, the court will state whether it is limited guardianship or plenary guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated and only needs assistance with certain areas and so the court would dictate what specific powers the guardian will have. The appointed guardian must act for the best interests of the Respondent and file a report each year with the court regarding the ongoing care of the Respondent. The Respondent or any other interested party can petition the court to modify or terminate the guardianship if circumstances change or if the appointed guardian is not acting appropriately.

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90 day Mutual Consent Divorce

A no-fault divorce means that neither party is asserting that the other party did something wrong. Instead, the assertion is that the marriage is simply irretrievably broken. In Pennsylvania, a no-fault divorce may be granted after a waiting period of 90 days provided both parties consent to the divorce at the conclusion of the waiting period. This waiting period is often referred to as a cooling-off period. It is utilized to give the parties an opportunity to reflect on the severity of the decision to get a divorce and/or seek marital counseling to see if the relationship can be saved. The 90-day waiting period begins to run from date of service of the Complaint in Divorce.

At this point, almost half of the states have some waiting period between when you file and when you can be divorced however, there does not appear to be any correlation between the length of the cooling off period versus the rate of divorce. New Jersey and Arkansas have longer waiting periods for a no-fault divorce. New Jersey has one of the lowest divorce rates in the country while Arkansas has one of the highest divorce rates. Pennsylvania does specifically indicate its policy behind the mandatory waiting period is to “encourage and effect reconciliation and settlement of differences between spouses” as the “protection and preservation of the family is of paramount concern.” 23 Pa. C.S. 3102.

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Appraisals for Divorce

An appraisal may be needed to ascertain an accurate value of an asset in a divorce or estate matter. Assets that may require an appraisal include real property, jewelry, vehicles, antiques, and even retirement plans. Parties may elect to use one appraiser or have their own independent appraisers. When choosing an appraiser, it is important to make sure the appraiser is licensed or certified. A licensed appraiser has met the minimum requirements for practice. A certified appraiser must complete additional classroom hours and practice in the field. A list of all licensed and certified appraisers is available online. You should also make sure the appraiser you select has prior experience with the exact type of appraisal sought. This would include experience in the geographic market, the type of property, and intended use of the property.

You should discuss with the appraiser if any information you supply to them is confidential and should not be included in their report. You should also make it clear who the appraiser is permitted to discuss the appraisal with and/or share the report with. For example, you may not want to share certain information with the opposing party. You should be clear about the valuation date for the appraisal. This may be the date of purchase, date of separation, date of death, or current value. Per the Uniform Standards of Professional Appraisal Practice, appraisers are not permitted to revise an appraisal to account for a different valuation date after completion. Instead, the standards require a completely new appraisal which is not cost-efficient. Finally, you should ascertain whether your appraiser would be available as witness if their testimony in a court hearing becomes necessary. This is generally an additional cost above the cost of the appraisal itself.

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How to Approach the Subject of a Prenup

As a wedding day approaches, most couples are consumed with thoughts of dresses, flowers, music, food, fun, and love. The last thing anyone wants to think about, much less talk about, is how assets will be divided in the event of divorce! However, this is a conversation that many couples need to have. Marriage is full of tricky discussions – it’s ok to start practicing that skill now.

There are many benefits to talking about a prenup. One of those is that the discussion will force you to look at your financial situation and examine both of your attitudes about money. Frankly, a deep discussion about finances should be a prerequisite to marriage, as money is a huge source of friction and discord in many relationships.

Beyond the benefits of discussing financial matters, there are several situations in which having a prenup in place is a good idea, such as:


  • If there is a large financial disparity between the two parties
  • If you own all or part of a business
  • If one of you has a large amount of debt
  • If you are remarrying, especially if there are children involved.

Regardless of your reasons, discussing a prenup can be difficult. Sometimes both parties heartily agree to a prenup. In other cases, one person has to convince the other. Here are a few tips for approaching the subject of a prenup:

Pick the Right Time

Don’t bring up a prenup in the heat of the moment or in the middle of an argument. Likewise, don’t introduce the topic in the middle of a romantic dinner to commemorate the anniversary of the day you met. Pick a quiet, neutral time to bring up the topic – when you are both well-rested and calm.

Consider a Mediator

You could suggest a meeting with a mediator who can help you discuss the advantages of a prenup impartially and without emotion. If you decide to move forward and draft a prenup, the mediator can also help you by asking all of the important questions, gathering information, and offering sound, logical advice. Again, a mediator can remove the emotion from a tender subject.

 

Be Honest

Be truthful and straightforward about why a prenup is important to you. Be very open about your financial situation – the good, the bad, and the uncertainties.

Listen

If your partner is opposed to the idea of a prenup, listen to their concerns. Don’t jump right in with arguments.

While you certainly do not expect your marriage to end in divorce, a prenup can allow you to open important lines of communication, have an honest dialogue about financial matters, and ultimately allow you to retain more control of your financial situation, rather than giving that control over to the court system. Approaching the topic is not easy. Remember that a trained attorney can help.

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APL

Alimony Pendente Lite, or APL, is spousal support while the divorce is pending. A party may petition for APL at the same time as the divorce complaint or any time thereafter prior to the entry of a final decree. The purpose of APL is to ensure each party has the ability to sustain themselves during the divorce. A party seeking APL should be ready to prove they lack sufficient property to provide for their reasonable means and are financially unable of self-support during the pendency of the divorce litigation. It is the income-dependent spouse who would have the opportunity to receive APL. The court may consider the duration of the marriage in making any award. This is to ensure one party does not benefit from a significant support award in the context of a very short marriage.

In a case with children, the APL award will be 30% of the difference of the parties’ net incomes after the child support obligations of the case have been applied. In a case without children, the APL award will be 40% of the difference of the parties’ net incomes. An award of APL is not appealable until after the divorce is final. The reason for that being that APL is not considered a “final order” as is required before an appeal can be taken. APL and spousal support are calculated the same way however, APL can be seen as preferable to spousal support in that there are no defenses to APL whereas for spousal support any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. Spousal support can be filed as soon as parties are separated and is not contingent on a divorce action pending.

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